Blogging While Female, Online Inequality and the Law

“Those who worry about the perils women face behind closed doors in the real world will also find analogous perils facing women in cyberspace. Rape, sexual harassment, prying, eavesdropping, emotional injury, and accidents happen in cyberspace and as a consequence of interaction that commences in cyberspace.”

- Anita Allen, “Gender and Privacy” (2000) 52 Stan. L Rev. at 1184.

In 2006, the University of Maryland’s Clark School of Engineering released a study assessing the threat of attacks associated with the chat medium IRC (Internet Relay Chat). The authors observed that users with female identifiers were “far more likely” to receive malicious private messages and slightly more likely to receive files and links. [1] Users with ambiguous names were less likely to receive malicious private messages than female users, but more likely to receive them than male users. [2] The results of the study indicated that the attacks came from human chat-users who selected their targets, rather than automated scripts programmed to send attacks to everyone on the channel.

The findings of this study highlight the realities that many women face when they are online. From the early days of cyberspace, women who identify as female are frequently subject to hostility and harassment in gendered and sexually threatening terms. [3] These actions typically stem from anonymous users.

Recent news articles from around the world have chronicled the latest spate of online misogyny. [4] Not only have the women bloggers in these cases been personally threatened, their images distorted and disseminated, in some cases their blogs and websites have also been subject to denial of service (DoS) attacks. Feminists [5] and women who blog about contentious political or social issues are not the only women who are singled out for abuse. Similar patterns of violent threats have also been directed toward women who blog about the daily life of a single mother, [6] computer programming, [7] and a variety of ordinary interests on sites with a female following, but no feminist content or agenda.

The effects of repeated online harassment has profound consequences for women’s equality online and in the real world. Online threats and attacks can have had a chilling effect on women’s expression. [8] Some women may either stop participating in open online forums, unless under the cloak of anonymity or pseudonymity, or self-censor their speech, rather than risk being the subject of violent threats or DoS attacks. These choices reduce a woman’s online identity to being the invisible woman, or a quieter, edited version of herself. Fortunately, women actively continue to blog and participate in cyber-life in the face of threats and harassment, with the support of both women and men in online communities.

Women’s retreat from the Internet can also have an economic impact on those seeking entry into technology-based labour markets. One prominent technology blogger observed: “If women aren’t willing to show up for networking events [because of harassment], either offline or online, then they’re never going to be included in the industry.” [9] Women’s absence from the creative process also has implications for equality in terms of influencing what kinds of technology are made, and what societal interests those innovations ultimately serve. [10]

To date, the law has provided a limited response to harms directed against women online. Traditional torts such as defamation are available, but are difficult to pursue against multiple, anonymous individuals who could be anywhere in the world. In light of the uncertainly in Canadian case law, [11] a claim for invasion of privacy would be very challenging to make in the absence of an appellate level decision recognizing the right to privacy. An action for intentional or negligent infliction of emotional distress may also be possible, although plaintiffs must meet stringent standards to succeed. [12] Complainants may have difficulty overcoming the view that in the absence of physical contact, no real harm can be inflicted in the virtual world, particularly within the context of fantasy/gaming environments.

Without a more complete and critical examination of actions that target women in cyberspace, there is the danger of reinforcing substantive inequality by dismissing the individual and social harm experienced as an “natural” part of online life. Although tort actions represent some avenues for redress, they are individual, private law remedies that do not speak to the public nature of harms against women. While criminal sanctions for assault, obscenity, hate speech and uttering threats are possible, they would only apply if actions could be proved to fall within Criminal Code [13] definitions and precedents. It should not be forgotten that women continue to face difficulties with the law in seeking protection from, and compensation for violence, harassment, discrimination and exploitation experienced in the real world. [14]

Given the market drive for more intense and realistic sensory experiences in the virtual world, it is not far-fetched to foresee online acts that more closely reflect conventional legal and social notions of physical and sexual violence in the future. [15] As “[t]he courts will increasingly be confronted with issues that are ‘lying in wait’ as virtual worlds expand,” [16] so too will feminists, lawyers, and policy makers be faced with opportunities to think about how to expand the law in favour of greater equality.

[1] Robert Meyer and Michel Cukier, “Assessing the Attack Threat due to IRC Channels,” (2006) University of Maryland School of Engineering, at 5-6 http://www.enre.umd.edu/content/rmeyer-assessing.pdf
[2] Ibid.
[3] See Rebecca K. Lee, “Romantic and Electronic Stalking in a College Context,” (1998) 4 WM. & Mary J. Women & L. 373 at 404, 405-6 which discusses sexual harassment from e-mail messages, in chat rooms, and Usenet newsgroups. A well-known account of sexualized threats towards female and androgynous virtual personas and the emotional harm experienced by the real-life participants is in Julian Dibbell’s, “A Rape in Cyberspace,” My Tiny Life (1998), ch. 1 http://www.juliandibbell.com/texts/bungle.html.
[4] Jessica Valenti, “How the web became a sexists’ paradise” The UK Guardian (April 6, 2007) http://www.guardian.co.uk/g2/story/0,,2051394,00.html; Anna Greer, “Misogyny bares its teeth on Internet,” Sydney Morning Herald (August 21, 2007) http://www.smh.com.au/news/opinion/misogyny-bares-its-teeth-on-internet/2007/08/20/1187462171087.html;
Ellen Nakashima, “Sexual Threats Stifle Some Female Bloggers,” Washington Post (April 30, 2007)http://www.washingtonpost.com/wp-dyn/content/article/2007/04/29/AR2007042901555_pf.html
[5] See Posts on “Greatest Hits: The Public Woman” and “What do we do about Online Harassment?” on Feministehttp://feministe.powweb.com/blog/archives/2007/08/09/what-do-we-do-about-online-harassment/?s=online+harassment&submit=Search
[6] Ellen Nakashima, Washington Post, supra note 4.
[7] BBC News, “Blog Death Threat Sparks Debate” (27 March 2007) http://news.bbc.co.uk/1/hi/technology/6499095.stm
[8] Deborah Fallows, “How Women and Men Use the Internet,” Pew Internet & American Life Project (December 28, 2005), at 14 <http://www.pewinternet.org/pdfs/PIP_Women_and_Men_online.pdf>. The report states.” “The proportion of internet users who have participated in online chats and discussion groups dropped from 28% in 2000 to as low as 17% in 2005, entirely because of women’s fall off in participation. The drop off occurred during the last few years coincided with increased awareness of and sensitivity to worrisome behavior in chat rooms.”
[9] Nakashima, Washington Post, supra note 4.
[10] For an study on women, technology and power see Judy Wacjman, Technofeminism (Polity Press: Cambridge, UK, 2004).
[11] Recently, lower courts in Ontario have found that complaints are free make a case for invasion of privacy: Somwar v. McDonald’s Restaurant of Canada Ltd., [2006] O.J. No. 64 (Ont. S.C.J.) and Re: Shred-Tech Corp. v. Viveen [2006] O.J. No. 4893. However, the Ontario Court of Appeal has explicitly found that there is no right to privacy in Euteneier v. Lee, [2000] O.J. No. 4533 (SCJ); rev’d [2003] O.J. No. 4239 (SCJ, Div Ct); rev’d (2005) 77 O.R. (2d) 621 (CA) at para 22.
[12] Jennifer McPhee, “New and Novel Torts for Problems in Cyberspace,” Law Times (30 July-August 6 2007) at 13.
[13] Criminal Code ( R.S., 1985, c. C-46 )
[14] Just two examples are: Jane Doe, The Story of Jane Doe: A Book About Rape (Random House: Toronto, 2003) and Patricia Monture-Angus, Thunder in my Soul: A Mohawk Woman Speaks. (Halifax: Fernwood Publishing, 1995). For an analysis of the limitations of the Supreme Court’s privacy analysis in obscenity, hate propaganda and child pornography cases, see Jane Bailey, Privacy as a Social Value - ID Trail Mix: http://www.anonequity.org/weblog/archives/2007/04/privacy_as_a_social_value_by_j.php
[15] Lydia Dotto, “Real lawsuits set to materialize from virtual worlds; Harm, theft in online gaming may land players in the courts: Precedents few, but Vancouver lawyer thinks cases coming” Toronto Star (2 May 2005) at D 04 (ProQuest).
[16] Ibid.